The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-05-03

y
two years upon any person not hay
ing a license or who shall sell or fur
nish opium, etc, to any person or
persons ooBtrdry to ldsr, and il therefore
follows that this penalty may be in
hicted upon any person licensed or
authorized TO sell or furnish opium.
whether under this law or any of those
previously mentioned, who shall not
comply in all respects with, or sell
contrary to the terms of those laws.
Section 1 of the Act in question
prescribes the same penalty for any
person who shall have possession Of
any opium contrary to the provisions
OF Section 3, but as that Section does
not impose any duty upon the pm-
chaser the decision arrived at IN the
case Of WG8We, BTito must be followed.
and It must be declared that no pun
ishment for the mere possession Of
opium can be inflicted under that
Section.
We have now TO consider whether
having opium IN possession, Is an of
tense under the law as amended by
the Act No. XVIII Of 1880.
This Is the only law which makes
the possession Of opium an offense,
and the possession necessary for 4
conviction must be contrary to the
terms of Section of that Act, herein
before set out.
Now does the Act of 1856 conflict
with this Section?
In constituting this Act we must take
into consideration the intention of the
!, Legislature SO far as such intention
' can be gathered from the text of the
Act itself, and must give effect TO the
Act If possible
The Legislature has attempted 10
deal with, and prescribe punishment
for persons, having opium in their
possession, but as we have already
stated, have not done so effectively.
1t may be the effect Of previous legis-
lation was not IN the minds OF the
Legislative body, but we cannot as
sumo this. On the contrary We must
assume that it was conyersant with
the whole law upon which they were
legislating, and It appears TO Us that
they intended 10 remove some OF the
restrictions affecting the dealing with
the drug in question, and 10 that ex-
tent the law would seem TO be ef-
ectual. for it undoubtedly enables per
sons prohibited by former laws, TO sell
this drug.
BY attempting 10 prescribe pen
slty for having possession of opium.
under certain circumstances the Leg
islature has shown Its intention 10
deal with the subject, and it has failed
in its attempt
We can only give effect TO such IN
tenuon. By adding after Section , Of
this Act in Section Of the law Of
1874 the words from q person duly
licensed as Aforesaid or some similar
words. but whieh would materially
alter the ofense described. and would
IN fact be legislaung instead Of con
STRUNG.
The part Of the Act Of 1874 dealing
with the matter Of the possession Of
opium Is in conflict with that part Of
the Act OF 1856 which refers 10 the
same albieet and IS TO this extent re-
peal as Section IL Of the Act Of
ISS6,2 Duets that all laws and parts OF
lawGa clcOnfict with the provisions Of
this.tsee shall be and the same are
her.o-i repealed.
UrSp. these circumstances We nave,
and we do so with much regret, 10 say
that the mere possession Of opium Is
not an ofense punishable by any law
now IN force.
However, whether 3 person having
opium in possession could not prop
erly be charged and convicted of
smuggling the same, Is another ques-
ton, and one that the Court viii have
TO consider when it Is raised.
The first point made on this appeal
IS that 1.-The Crown has not proved Its
charge OF unlawful possession Of OPT
UNI"
On the authority OF Briggs VS..
Briggs, I Haw. AS. we hold that
whether there is any evidence to sus-
tain the judgment, Is g question OF
law. but the Court IN such case will
examine the evidence only so far as
to ascertain whether or not there Is
evidence to sustain the Judgment. We
are not to consider the question
whether the charge Of unlawful pos
session Of opium was fully proven, as
the appeal IS limited to the points OF
law taken. Finding from papers sent
up, evidence that the defendant had
possession of opium, we enquire no
further and override this point.
The second point has already been
considered fully.
The third point, that the Act Of 1856,
entitled AN Act to regulate the i'm
portstion and sale Of opium" Is unS
constitutional and therefore void and
Of no effect, remains to be considered
The 18th Article Of the Constitution
Is cited as being contravened by this
law IT ras5S- :. To avoid imOrODar